DEFENDANT’S MOTION TO DISMISS
SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 12 Honorable Nahal Iravani-Sani, Presiding Courtroom Clerk, Ryan Nguyen 191 North First Street, San Jose, CA 95113 Telephone: (408) 882-2230
DATE: 08/12/2026 TIME: 9:00 A.M. and 9:01 A.M.
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LINE 3 25CV456689 Richard Chamberlain MOTION TO COMPEL v. City of Campbell et al.
LINE 4 25CV464505 JP Morgan Chase Bank MOTION TO VACATE v. Holly Reyes Please Ctrl click (or scroll down to) Line 4 LINE 5 25CV467320 Thanh Trun Nguyen DEFAULT PROVE-UP V Phuong Anh Nguyen Continued to August 30, 2026 at 1:30 p.m. in Department 18 LINE 6 25CV474909 Brendan Patrick MOTION TO DISMISS McCloskey v. City of San Jose et al Please Ctrl click (or scroll down to) Line 6 LINE 7 25CV475239 Anusha Ramachandra MOTION TO STAY PROCEEDINGS & DECLARATORY RELIEF v. Surakshith Narasegowda Please Ctrl click (or scroll down to) Line 7 LINE 8 26CV487361 Guideone Insurance Co PETITION TO COMPEL ARBITRATION & STAY PROCEEDINGS v. Quickbooks Online Payroll, Inc. Please Ctrl click (or scroll down to) Line 8 LINE 9 26CV491068 Lan Lam DEMURRER & MOTION TO STRIKE v. LINE 10 Sabri Gurbuz Demurrer to FAC is Unopposed and Sustained with 15 days leave to Amend; Motion to Strike is Moot
Calendar Line 6 Case Name: Brendan Patrick McCloskey v. City Of San Josse, et al. Case No. 25CV474909
DEFENDANT’S MOTION TO DISMISS
Background
Plaintiff filed this action on September 11, 2025. Plaintiff subsequently passed away later that month from an unrelated incident. Plaintiff's counsel has since withdrawn from the action. No personal representative or successor in interest has appeared, and no motion has been filed seeking to continue the action on Plaintiff's behalf.
Defendant City of San Jose represents that it provided notice to Plaintiff's mother concerning the status of the case. Defendant received no response.
Analysis
A pending action does not necessarily abate upon the death of a party. Code of Civil Procedure section 377.21 provides that "[a] pending action or proceeding does not abate by the death of a party if the cause of action survives." Section 377.20, subdivision (a), similarly provides that, except as otherwise provided by statute, a cause of action is not lost by reason of a person's death, but survives subject to the applicable limitations period.
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Where a person who commenced an action dies, Code of Civil Procedure section 377.31 provides that, on motion, the Court shall allow a pending action that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest. Section 377.32 sets forth the requirements for a person seeking to act as the decedent's successor in interest, including the filing of the required declaration and a certified copy of the decedent's death certificate.
Thus, Plaintiff's death, standing alone, does not require dismissal. At the same time, the record reflects that Plaintiff has been deceased since September 2025, Plaintiff's counsel has withdrawn, and no person authorized to prosecute the action has come forward during the ensuing months.
The Court finds it appropriate to defer ruling on Defendant's motion to allow reasonable notice to persons who may have authority to continue the action and an opportunity for such person to seek continuation of the action pursuant to section 377.31.
California Rules of Court, rule 3.1342, which governs motions to dismiss for delay in prosecution, expressly permits the Court, where the circumstances warrant, to "continue or defer its ruling" pending performance of conditions necessary to effectuate substantial justice. The rule also directs the Court to consider all matters relevant to a proper determination, including the court's file, the nature of the case, the extent of any delay, and whether the interests of justice are best served by dismissal or continuation of the case.
Here, a continuance is appropriate. Plaintiff died shortly after filing the action, and Plaintiff's counsel has withdrawn. Although Defendant has attempted to notify Plaintiff's mother, there is no indication in the present record that Plaintiff's mother is Plaintiff's personal representative or successor in interest. The Court therefore finds it appropriate to provide a reasonable opportunity for any person with authority to act on Plaintiff's behalf to come forward before ruling on Defendant's request for dismissal.
Accordingly, the hearing on Defendant's Motion to Dismiss is CONTINUED to October 23, 2026.
Any person seeking to continue the action on Plaintiff's behalf should, before the continued hearing, file an appropriate motion pursuant to Code of Civil Procedure section 377.31 and comply with the requirements of section 377.32.
If no personal representative or successor in interest appears and takes appropriate steps to establish authority to continue the action by the continued hearing, the Court will consider Defendant's Motion to Dismiss on the record then before it.
Notice
The Clerk of the Court shall serve a copy of this order on:
1. Plaintiff's former counsel of record; 2. Plaintiff's last known address as reflected in the court file; and 3. Plaintiff's parents, at the address provided to the Court or reflected in the court's records, if any. If the court file identifies a personal representative, executor, administrator, or other person claiming to be Plaintiff's successor in interest, the Clerk shall also serve a copy of this order on that person at the address reflected in the court's records.
Service of this order does not constitute a determination that such person is Plaintiff's personal representative or successor in interest. Any person seeking to continue the action must establish their authority in accordance with Code of Civil Procedure sections 377.31 and 377.32.
The hearing on Defendant's Motion to Dismiss is CONTINUED to October 23, 2026, at 9:00 a.m., in Department 12.
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